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Feb. 2 — Employers
concerned about I-9 compliance should be aware that overzealous
efforts could draw the attention of a little-known enforcement
agency: the Office of Special Counsel for Immigration-Related
Unfair Employment Practices.

Located within the Justice Department's Civil Rights
Division, the OSC is responsible for enforcing the
anti-discrimination provision of the Immigration and Nationality
Act. That provision covers four areas: citizenship status
discrimination in hiring, firing, or recruitment or referral for a
fee; national origin discrimination in hiring, firing, or
recruitment or referral for a fee; document abuse (unfair
documentary practices during the Form I-9 employment eligibility
verification process); and retaliation or intimidation.

“The Office of Special Counsel is a fairly small
agency within the Department of Justice,” Siskind Susser attorney
Bruce Buchanan told Bloomberg BNA Jan. 21. “Because employers don't
see as much of them, they're not a focus.”

He said he “wouldn't be shocked” to learn that most
employers don't even know what the agency is.

Enforcement ‘Ramping Up.'

While the OSC started off small, in more recent
years it has been ramping up enforcement, Buchanan said.

A spokesman for the DOJ told Bloomberg BNA Feb. 1
that the OSC has entered into 80 settlement agreements since fiscal
year 2012. The office also has filed eight complaints with the
Office of the Chief Administrative Hearing Officer, an
administrative body within the DOJ's Executive Office for
Immigration Review.

OCAHO also handed the OSC two victories, in 2014 and
2015, the spokesman said. In United States
v. Life Generations Healthcare, LLC, DOJ OCAHO, No.
11B00136, 9/11/14, OCAHO found that an employer had engaged in a
pattern or practice of discrimination against foreign-born
applicants and employees when completing the I-9 employment
eligibility verification form.

The parties reached a settlement over the remedy for
the violation, with Life Generations Healthcare agreeing to pay
$88,687 in civil penalties and $119,313 in back pay to the affected
employees.

In United States v.
Estopy, DOJ OCAHO, No. 12B00011, 6/10/15, OCAHO held that
the employer discriminated against qualified U.S. workers by
preferring H-2A agricultural guestworkers (114 DLR A-4, 6/15/15).
OCAHO later held that the farm was liable for the maximum civil
penalty of $3,200 160 DLR A-4, 8/19/15).

There aren't many OSC-driven discrimination cases
that make it into litigation before OCAHO, and “almost nothing”
makes it up to the federal appeals courts, Buchanan said.

But he said other OCAHO cases originate with the OSC
and are brought by employees who are given the equivalent of a
right to sue letter from the Equal Employment Opportunity
Commission.

Settlements More ‘Creative,'
Amounts Higher

Buchanan also told Bloomberg BNA that “the amount of
money” involved in the OSC's settlements appears to be increasing,
and the terms of the settlements have gotten more “creative.” The
OSC also has started targeting some more “high profile” employers,
he said.

McDonald's, for example, settled with the OSC in
November 2015 by agreeing to a $355,000 civil penalty and
“undetermined” amount of back pay for anyone adversely affected by
the company's illegal attempt to re-verify the employment
eligibility of workers with green cards (224 DLR A-9,
11/20/15).

In October 2015, Miami-Dade County Public Schools in
Florida settled with the OSC for $90,000 in civil penalties and
$125,000 in back pay. The “creative” part of that settlement was
the requirement that the school system arrange for training on
workers' rights for its high school students and also at five of
its English for Speakers of Other Languages education centers,
Buchanan said.

Also in October 2015, Yellow Checker Star
Transportation Co. in Las Vegas settled for $445,000 in civil
penalties, which a DOJ spokesman said is the largest OSC settlement
amount to date. Buchanan added that the taxi company also agreed to
place six full-page, color advertisements in a monthly trade
magazine that contain information about the OSC's work.

OSC Checks ‘More Burdensome' Than
I-9 Audits

It's not just the settlement terms that can be
problematic for employers, Fragomen, Del Rey, Bernsen & Loewy
attorney Dan Brown said. The OSC always issues press releases and
makes public its settlement agreements and OCAHO judgments, which
can damage an employer's reputation, he told Bloomberg BNA Jan.
29.

Furthermore, OSC investigations—even those that
don't result in discrimination charges—are “far more burdensome”
than an inspection of I-9 employment eligibility verification forms
by Immigration and Customs Enforcement, Brown said.

“Most classically” an OSC investigation is triggered
by an employee's discrimination complaint, Brown said, but the
office has its own independent investigative authority and is
shifting to being “investigation-focused rather than
complaint-driven.”

In addition, it's becoming “more and more common”
for OSC to initiate investigations after referrals from U.S.
Citizenship and Immigration Services based on an employer's use of
the E-Verify employment eligibility verification system, he
said.

For example, E-Verify might show that all of an
employer's lawful permanent resident employees have presented a
green card to prove work authorization. That “might be evidence
that the employer is requiring those documents, rather than giving
them a choice” as is required under the law, Brown said.

Therefore, E-Verify is capturing data and giving the
OSC a “more ready source” of information on “larger-scale potential
document abuse practices,” he said.

Trying to Do the Right
Thing

“I hardly ever see situations where there's some
sort of intentional discrimination,” Scott Decker, an attorney with
Greenberg Traurig in Atlanta, told Bloomberg BNA Jan. 29. “It
almost always is a situation where people think they're doing the
right thing and just not realizing it's not.”

The “most common scenario,” Decker said, is an
employer asking foreign workers for extra documents to prove work
authorization on the “mistaken belief” that if a little bit of I-9
compliance is good, a lot of compliance is even better.

Just because someone can prove that he or she is
work-authorized in three different ways doesn't mean an employer
has to ask for all of them, Decker said. “Once you've proven it,
that's all you need,” he said.

Decker cautioned that employers “burned in the past”
by an ICE I-9 audit may decide to “go 110 percent” on I-9
compliance in the future. But in doing so they may not realize that
the extra 10 percent “can also get you in hot water,” he
said.

A DOJ spokesman told Bloomberg BNA Feb. 1 that the
OSC encounters more discrimination during the I-9 process than
during hiring and firing. The office also is more likely to receive
calls on its hotline that relate to potential document abuse rather
than hiring, firing or recruiting discrimination, he added.

The spokesman pointed out, however, that these
figures are based on what the OSC encounters and may not reflect
the actual most common violations that occur.

Internal I-9 Audit Guidance
Welcome

“Both agencies are working hard to encourage
employers to do internal I-9 audits,” Buchanan said. Many employers
have been reluctant to “self-enforce” because they didn't really
know the guidelines on what to do “if certain issues arose” during
the process, he said.

According to Buchanan, a lot of the information in
the guidance was already public in some form, but there hasn't
previously been a “go-to document” that could be consulted.

“It's a very welcome release because we have always
advised clients to conduct internal I-9 audits to make sure they
have a good understanding” of their I-9 practice, Decker said. Many
employers have good policies and procedures, but they're not always
implemented on the ground, he said.

The “main advantage” of the guidance is having it
issued jointly by ICE and the OSC, Decker added. He said “there's
always been a tension in immigration law” between work
authorization compliance and avoiding discrimination.

Potential Bias Through
Outsourcing

Brown told Bloomberg BNA that the OSC's latest
technical assistance letter on the discrimination implications of
replacing U.S. workers with foreign workers is “interesting.” In
the letter, the OSC states that there could be illegal
discrimination in certain factual circumstances (248 DLR A-6,
12/29/15).

Decker, however, pointed out that the
anti-discrimination provision of the INA only contemplates
intentional discrimination, not an otherwise neutral policy that
has a disparate impact on a particular group.

The way it “usually works” is that an employer is
trying to save money and decides it can do so through outsourcing,
Decker explained. The outsourcing company tells the employer it can
cut costs, and it just so happens that its hiring model is to
employ primarily foreign guestworkers, he said.

A potential discrimination charge could arise if
there's some knowledge on the part of the employer that the cost
cutting is being accomplished because foreign workers are replacing
U.S. workers, Decker said.

Brown said the OSC would consider knowing
replacement of U.S. workers with foreign workers to be intentional
discrimination, even if there's no “bad animus” against either
group. The OCAHO decision in Life Generations
Healthcare found liability despite a lack of animus against
foreign workers because they were targeted based on their
citizenship status, he said.

Be Clear, Consistent,
Proactive

The “most important” thing that employers can do to
avoid an OSC discrimination charge is to have “clear and consistent
policies and procedures” that are carried out as uniformly as
possible and to follow the I-9 and E-Verify rules as closely as
possible, Brown told Bloomberg BNA.

Employers that are thinking of taking adverse action
against an employee because of an immigration status problem should
consult with counsel ahead of time, he said.

“You have to be proactive with your compliance
policy,” Decker said. “It's not good enough just to be reactive and
make things better once there's an investigation.”

Compliance must be made a “cornerstone of hiring,”
Decker added, and employers should “lead from the top on it.” A big
weakness for employers is leaving OSC-related compliance for the
employee with the least experience, meaning the person lacking
knowledge of all the rules is “the first and last line of defense
in presenting an OSC challenge,” he said.

Decker also said most human resources software
programs now have a component on I-9 compliance. Automating the
process and eliminating the “human element” as much as possible
allows for “a more consistent outcome,” he said.

Employers that are unaware of their obligations
under the INA's anti-discrimination provision should register for a
free OSC employer webinar, a DOJ spokesman said. He added that the
OSC has frequently asked questions posted on its website.

Employers that are more familiar with the provision
can turn to guidance documents, information about the OSC's
enforcement activity and technical assistance letters, the
spokesman said. In addition, employers can call the OSC's free
employer hotline at 1-800-255-8155 (TTY 1-800-237-2515).

To contact the reporter on this story: Laura D.
Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at smcgolrick@bna.com

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